These Terms of Service govern the purchase and use of the business communications services and related equipment provided by Highway 89, LLC (“Mereo”) and are between Mereo and the “Customer” identified in a signed Service Order.

1)    Services; Term. Mereo will provide the Customer with the services selected by the Customer on the Service Order, including Internet services and voice services (each a “Service” and, collectively, the “Services”) and associated equipment owned by Mereo or leased to Customer for the Services under this or another Agreement or order between Mereo and Customer. (“Equipment”). The term of the agreement shall be stated in the Service Order (the “Initial Term”). If no term is stated, the Services are provided on a month-to-month basis. The term begins on the date Mereo first activates Services and follows calendar months thereafter. The duration of the term is calculated beginning on the first day of the first whole month of Services. Following the Initial Term, the Agreement shall continue on a month-to-month basis unless either Party provides the other Party with written notice of its intent to terminate this Agreement at least thirty (30) days prior to the desired effective date of termination.

2)    Billing; Billing Disputes.

(a) Mereo shall invoice the Customer each month for the service charges and any other charges set forth in the Service Order. Mereo shall prorate service charges and other for any partial month at the beginning of the term. Except as permitted under section 2(c), the Customer shall pay each invoice in full by the due date.

(b) If this agreement is terminated, all unpaid service charges and other charges set forth in the Service Order will become due immediately.

(c) To dispute an unpaid invoice, the Customer must, no later than the due date of the invoice, (i) notify Mereo of the dispute and (ii) pay all undisputed portions of the invoice. To dispute a paid invoice, the Customer must notify Mereo of the dispute no later than 60 days after the date of the invoice. If the Customer fails to pay the undisputed portions of an invoice by the due date of the invoice, or if it fails to provide notice as required in this section, it hereby waives its right to dispute any portion of the invoice. The Customer must notify Mereo of any billing dispute by phone at (801) 478-7200, by email at billing@mereonetworks.com, or by delivering notice to Mereo Networks, Attn: Accounts Receivable, 515 E. Grant Street, Suite 105, Phoenix, Arizona 85004.

3)    Government Fees and Taxes. The Customer is responsible to pay all taxes, levies, duties, charges, and fees, including sales, use, withholding, public utility, or universal service surcharges or fees, as well as emergency services surcharges (e.g. 911, E911, 999) assessed, assessable or otherwise imposed by any government authorities in connection with Mereo’s provision of Services to the Customer (collectively, “Taxes”). Mereo may invoice the Customer to recover any such Taxes that Mereo reasonably believes it has a legal obligation to collect and remit (or that Mereo is permitted to pass on to its customers, such as universal service fund contributions and similar Taxes) under applicable law. If the Customer is exempt from payment of any Taxes, it shall provide Mereo with a valid tax exemption certificate authorized by the appropriate taxing authority. Tax exemption will only apply from and after the date Mereo receives the exemption certificate.

4)    Regulatory Recovery Fee. Except where prohibited by applicable law, Mereo may charge a monthly regulatory recovery fee in connection with any telephony services provided to Customers within the United States to offset costs incurred by Mereo in complying with inquiries and obligations imposed on Mereo by federal, state, municipal and/or other regulatory bodies and government agencies. This fee is not a tax or charge required or assessed by any government. Mereo may increase or decrease the regulatory recovery fee without notice.

5)    Late Fees.

a)    Mereo may charge a late fee up to $15 or 1.5%, whichever is greater, for any amount unpaid by the due date. Mereo may charge a separate late fee for each whole or partial billing period the Customer’s payment is late.

b)     Mereo will charge a late fee for a disputed amount if (i) it was not paid by the due date and (ii) Mereo determines that the Customer disputed the charge in bad faith.

c)     Mereo may use collection services to recover unpaid charges and may report late payments to credit bureaus or other entities. If Mereo refers any amounts to a third-party debt collection agency, the Customer shall pay any collection fees incurred by Mereo, including any attorneys’ fees, as permitted by law.

6)    Returned Check Fees. Mereo may charge up to the maximum amount permitted by law if the Customer’s banking institution dishonors or reverses a check, draft, or other payment.

7)    Termination of Service. Customer may terminate Service at any time by notifying Mereo; provided, however, if the sales order states an initial term longer than one month, the Customer shall pay an early termination fee equal to all applicable service charges through the end of the term. Customer expressly agrees that upon termination of this agreement and the Services (i) Customer shall pay any outstanding balance in full and promptly return the equipment to Mereo; (ii) Customer will permit Mereo to access Customer premises at a reasonable time to remove any Equipment or other material provided by Mereo; (iii) Customer will return or destroy all copies of any software provided to Customer pursuant to this Agreement; and (iv) Mereo is authorized to delete any file, programs, data and e-mail messages associated with Customer’s account. Mereo may terminate Service immediately for violation of these Terms of Service.

8)    Access to Premises. Customer agrees to provide Mereo employees with reasonable access to the premises to install, inspect, repair, alter, maintain, or remove the Service and any Mereo equipment.

9)    Ownership of Equipment.  The Equipment shall remain Mereo’s sole and exclusive property.

10)  Use Policies. Customer agrees to ensure that all uses of the Mereo Equipment and/or the Services installed at its premises (“use”) are legal and appropriate, and in compliance with Mereo’s Acceptable Use Policy. Specifically, Customer agrees to ensure that all uses by it or by any other person (“user”), whether authorized by Customer or not, comply with all applicable laws, regulations, and written and electronic instructions for use.  Mereo reserves the right to act immediately and without notice to terminate or suspend the Services and/or to remove from the Services any information transmitted by or to Customer or users, if Mereo (i) determines that such use or information does not conform with the requirements set forth in this Agreement, (ii) determines that such use or information interferes with Mereo’s ability to provide the Services to Customer or others, or (iii) reasonably believes that such use or information may violate any laws, effective regulations, or written and electronic instructions for use.

11)  Tampering/Misuse/Lost/Stolen. Customer is responsible for all charges attributable to Customer with respect to the Services, even if incurred as the result of fraudulent or unauthorized use of the Services. Customer shall not alter, misuse, repair, or in any manner tamper with the Equipment or outlets or remove from the Equipment any markings or labels. Equipment cannot be removed from Customer’s premises and used in another location. Customer is responsible for the safekeeping of all Equipment. If any Equipment is destroyed, damaged, lost or stolen while in Customer’s possession, Customer shall be liable for the cost of repair or replacement of the Equipment.

12)  Changes in Services, Equipment and Charges. We may change our Services, Equipment and charges, including deleting Services, with or without notice. Customer acknowledges that the content, programs, or formats of the Services may be discontinued, modified or changed by the owners of the services at any time without prior notice.

13)  Resale. Customer may not sell, resell, sublease, assign, license, sublicense, share, provide, or otherwise utilize in conjunction with a third party (including, without limitation, in any joint venture or as part of any outsourcing activity) the Services or any component thereof.

14)  Transfer of Account or Change of Residence/Ownership. Customer may not assign or transfer Customer’s obligations or rights related to the Equipment or Services, including to a new address, without our express written consent.

15)  Service and Repairs. We will make reasonable efforts to maintain our system facilities and respond to service calls in a timely manner. We will repair damage to Equipment, or interruption of Service, due to reasonable wear and tear or technical malfunction. Physical damage to Equipment caused by misuse, insect infestation, spillage, or neglect is Customer’s sole responsibility and Customer must pay us for the cost of repair or replacement.

16)  Customer’s Equipment. We shall have no responsibility for the operation, maintenance or repair of any equipment owned by Customer, including but not limited to modems, routers, telephones and other devices.

17)  Service Interruptions. We assume no liability for interruption of Service or alterations in programming due to circumstances beyond our control, including without limitation, acts of God, natural disaster, fire, civil disturbance, strike or weather. We assume no liability for any substitution, discontinuation or modification of any programming.

18)  Compliance with Agreement. Mereo reserves the right to suspend performance or terminate Service for the breach of any of these terms and conditions or our policies related to the Services.

19)  Customer Representations and Warranties. Customer represents and warrants that it has the legal right and authority to execute, enter into and bind such party to the commitments and obligations set forth herein. Customer warrants that it is legally empowered to authorize Mereo to enter upon the property for the purpose of providing the Services.

20)  WARRANTY DISCLAIMER. MEREO’S EQUIPMENT AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED. NO STATEMENT, ADVICE, OR INFORMATION GIVEN BY US, OUR OFFICERS, EMPLOYEES, AGENTS, AUTHORIZED REPRESENTATIVES, AFFILIATES OR CONTRACTORS, OR THEIR RESPECTIVE EMPLOYEES, CREATES A WARRANTY. CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES BY MEREO, WRITTEN OR ORAL, OTHER THAN THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT.  WE DO NOT WARRANT THAT THE EQUIPMENT OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

21)  CUSTOMER INDEMNIFICATION. CUSTOMER AGREES THAT CUSTOMER SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS MEREO AND ITS THIRD-PARTY SERVICE PROVIDERS, AGENTS AND SUPPLIERS (AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES) (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) AND SHALL REIMBURSE THE INDEMNIFIED PARTIES FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES AND COSTS) INCURRED IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS AND CAUSES OF ACTION ARISING OUT OF: (i) CUSTOMER’S USE OF THE SERVICE OR EQUIPMENT; (ii) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM CUSTOMER’S USE OF THE SERVICE OR ANY UNAUTHORIZED APPARATUS OR SYSTEM; AND (iii) CUSTOMER’S BREACH OF ANY PROVISION OF THIS AGREEMENT.

22)  LIMITATIONS ON LIABILITY. IN NO EVENT SHALL MEREO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE EQUIPMENT, THE SERVICES, OR CUSTOMER’S USE OF OR INABILITY TO USE THE FOREGOING, INCLUDING LOST BUSINESS OR PROFITS, BUSINESS INTERRUPTION OR DOWNTIME, LOSS OF INFORMATION OR DATA, OR COST OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS OR SERVICES. THE TOTAL CUMULATIVE LIABILITY OF MEREO ARISING OUT OF AND RELATED TO THIS AGREEMENT, THE EQUIPMENT, THE SERVICES, AND CUSTOMER’S USE OF OR INABILITY TO USE THE FOREGOING SHALL NOT, REGARDLESS OF THE NUMBER OF INCIDENTS OR CAUSES GIVING RISE TO ANY SUCH LIABILITY, EXCEED THE LESSER OF: (A) THE FEES PAID BY CUSTOMER TO MEREO IN RESPECT OF THE EQUIPMENT AND SERVICES GIVING RISE TO THE CLAIM(S); OR (B) THE TOTAL FEES PAID BY CUSTOMER TO MEREO UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE FIRST SUCH CLAIM. THE LIMITATIONS ON LIABILITY IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, REGARDLESS OF THE CAUSE OF ACTION OR BASIS OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, INDEMNITY OR OTHERWISE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ON LIABILITY ARE AN ESSENTIAL PART OF THIS AGREEMENT, AND SHALL BE VALID AND BINDING EVEN IF ANY REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.

23)  Special Provisions Regarding Internet Services.

a)    Customer understands and agrees that Mereo does not guarantee any particular amount of bandwidth on the Mereo network or that any speed or throughput of Customer’s connection to the Mereo network will be available to Customer. Customer understands and agrees that the speed of the Service provided at Customer’s site will vary depending upon a number of factors, including Customer’s computer system(s) and associated equipment, Internet traffic, and other factors such as system capacity limitations, governmental actions, events beyond Mereo’s control, and system failures, modifications, upgrades and repairs.

b)    If Customer receives Internet Service, Customer agrees to be bound by Mereo’s Acceptable Use Policy, which shall supplement, and control over any contradictory terms in this Agreement.

24)  Special Provisions Regarding Phone Services.

a)    Call recording. The Customer acknowledges that it has read and understood Mereo’s Call Recording Information, available at jive.com/legal/call-recording-info.

b)    911 dialing; Service Availability; Location Information.

i)      The Customer acknowledges (1) that it has read and understood Mereo’s 911 and Service Availability Policy, which is available at jive.com/legal/911-service-availability-policy, and (2) that 911 dialing service offered by Mereo (“Mereo 911 Dialing”) differs from 911 dialing service offered by traditional telephone carriers in the ways described in the 911 and Service Availability Policy, including that Mereo 911 Dialing will not function if the Customer loses electrical power or broadband internet connection or if anything on the Customer’s wide area network or local area network blocks the Customer’s connection to Mereo’s platform. Also, Mereo 911 Dialing will not function if Mereo has deactivated the Services for any reason, including the Customer’s non-payment.

ii)    The Customer shall provide Mereo the physical location of each device used to make or receive calls, and Mereo shall not activate a device until it has received this information. If the Customer relocates any device, it shall promptly notify Mereo’s Support Department of the device’s new location by phone at (801) 478-7201, or by e-mail at support@mereonetworks.com and shall pay any fees associated with updating the location database.

iii)   Location and callback information associated with a device will normally be automatically forwarded to an emergency dispatch center when using Mereo 911 Dialing. Because some emergency dispatch centers are not equipped to receive such location and callback information, the Customer acknowledges that it may need to provide location and callback information verbally. Automatic forwarding of location and callback information is not activated for any device until Mereo notifies Customer by e-mail that it has been activated.

c)     Reasonable Use; Account Fraud. With respect to any telephone service, the Customer hereby acknowledges:

i)      that any reference Mereo has made to “unlimited” minutes or features refers to Mereo’s practice not to charge users on a per-minute or per-use basis when use is reasonable; and

ii)    that Mereo does not offer “unlimited” plans for call center operations, fax spamming, or other activities that use an extraordinary amount of connectivity to the public switched telephone network (the “PSTN”). Mereo may limit PSTN connectivity, impose per-minute charges for excessive use, or terminate this agreement if it determines that the Customer’s average per-user PSTN connectivity is unreasonable as compared to other customers.

iii)    Mereo may block calls or call destinations it believes are associated with toll fraud or traffic pumping and may terminate Services it believes were obtained by subscription fraud.

25)  Information Provided to Third Parties. Mereo is not responsible for any information provided by Customer to third parties. Customer assumes all privacy and other risks associated with providing personally identifiable information or CPNI to third parties via the Services.

26)  Monitoring. Mereo has no obligation to monitor content; however, Customer agrees that Mereo has the right to monitor content and Customer’s use of the Services, and to disclose any information as permitted or required by any law, regulation, or governmental request, or to protect us or our other customers.

27)  Binding Arbitration. Except for collection efforts under section 5(c) and enforcement of an arbitration order under this section 27, if the parties are unable to resolve any dispute arising from this agreement by direct negotiation, they shall resolve the dispute through binding arbitration in Phoenix, Arizona before a single arbitrator from the American Arbitration Association in accordance with its Commercial Arbitration Rules. The parties hereby waive any right to a jury trial in connection with any claim arising from this agreement.

28)  Attorneys’ Fees. If any arbitration or legal proceeding is validly instituted to enforce the terms of this agreement, the prevailing party may recover its attorneys’ fees and other costs.

29)  Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of Arizona. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the service or the Agreement must be filed within one (1) year after such claim or cause of action arose.

30)  Waiver of Rights. Failure to enforce a right or provision under this agreement does not constitute a waiver of that right or provision.

31)  Severability. If any part of this agreement is declared unenforceable by a court, all other parts will remain enforceable.

32)  Survival. Each Party’s obligations under this Agreement that by their nature would continue beyond the termination or expiration of this Agreement shall survive, including, but not limited to this Section 32 and Sections 6, 7, 20, 21, 22, 24, 27, 28, 29, 30, 31, 32, and 33.

33)  Notices.

a)    Mereo shall deliver any notice to the Customer to the mailing address, fax number, or e-mail address stated in the sales quote. Except for billing disputes or location updates, the Customer shall deliver any notice to Mereo by e-mail to legal@mereonetworks.com or by delivering it to Highway 89, LLC, 515 E. Grant Street, Suite 105, Phoenix, Arizona 85004. Either party may update its contact information for notices by delivering notice of the new contact information to the other party in accordance with this section 33(a).

b)    Notice will be deemed to have been given (i) when sent, if sent by email to the address specified in paragraph (a) of this section, (ii) three business days after being mailed by registered or certified mail, postage prepaid; or (iii) the next business day, if sent by commercial overnight delivery service; unless, with respect to (ii) or (iii), tracking information indicates delivery on a different date.

34)  Entire Agreement; Modification. These terms of service constitute the entire agreement between Mereo and the Customer and supersede any previous agreement. Mereo may modify this agreement by posting revised terms online at mereonetworks.com/terms-of-use.php without additional notice to the Customer. The revised terms of service will take effect 30 days after posting. No other modification to these terms of service will be effective unless made in writing and signed by both parties to the agreement.